[EL] Cruz op-ed on proposed constitutional amendment

Thu Jun 5 04:46:22 PDT 2014

My colleague Sonja West has a great paper on defining "the press", forthcoming in Harvard Law Review. SSRN link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228813

Press Exceptionalism by Sonja West :: SSRN
Thanks to advances in mass communication technology, it is now easier and cheaper for all of us to share information with each other. This new ability allows u
Read more...<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2228813>

Lori A. Ringhand
J. Alton Hosch Professor of Law
University of Georgia College of Law
Athens, GA 30601

ringhand at uga.edu<mailto:ringhand at uga.edu>
706 542 3876
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414
________________________________
From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Justin Levitt <levittj at lls.edu>
Sent: Wednesday, June 4, 2014 7:39 PM
To: Daniel Abramson
Cc: Election Law
Subject: Re: [EL] Cruz op-ed on proposed constitutional amendment

There are indeed cases where the Court seems to refer to "the press" as an industry (the NYT excerpt is a concurrence, I believe), though that characterization is rarely dispositive of the constitutional question.   There are other cases where it takes a different approach.  (For example, Justice Scalia's concurrence in Citizens United.)

My point is simply that whatever the press actually means for First Amendment purposes, "the press" in SJ Res 19 almost certainly reflects the understanding in your excerpt -- that it refers to a specific industry.  That's an approach with a lot of very thorny consequences with respect to who's in and who's out (and who decides).  And it has the potential to change our understanding of "the press" not only for SJ Res 19, but also for purposes of the First Amendment more generally (and outside of the campaign context), because the construction of the constitution (including pre-existing provisions) may change with each amendment.

Justin

On 6/4/2014 4:06 PM, Daniel Abramson wrote:
Justin,

I agree that Eugene Volokh's argument that the framers intended the word "press" to refer to a means of a communication is persuasive.  However, correctly or not, modern courts often treat the press as an industry with special status under the First Amendment.  For example, see this excerpt from the Supreme Court's Pentagon Papers decision:

"Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do."  New York Times Co. v. United States, 403 U.S. 713, 717, 91 S. Ct. 2140, 2143, 29 L. Ed. 2d 822 (1971)

It certainly appears that the Court is conflating the "press" with the newspaper industry.

Daniel

On Wed, Jun 4, 2014 at 2:47 PM, Justin Levitt <levittj at lls.edu<mailto:levittj at lls.edu>> wrote:
John mentions that "Press" as used in the First Amendment refers to a means of communication, not a particular industry.  Eugene Volokh's made the same point, and persuasively so.

But "press" as used in SJ Res 19 hasn't been construed yet, and we're not sure how "press" as used in a wholly-hypothetical 28th Amendment would be construed.  The sponsors seem to believe that it refers to an industry.  (The problems with defining the contours of said industry are, of course, legion.)  And it's a little hard to believe that courts would construe section 3 of an amendment to "undo" much of section 1 of that same amendment.

The broader point is that a new amendment yields new construction -- some of which may be consistent with past constructions of other portions of the constitution, some of which may not.  Amending the document amends the document.

(FWIW, I'm not a fan of the new amendment either.  The "press" issue is just one reason.)

Justin

On 6/4/2014 2:32 PM, Rick Hasen wrote:
Message from John White, who is having trouble posting:

From: John White
Sent: Wednesday, June 04, 2014 1:39 PM
To: 'law-election at uci.edu<mailto:law-election at uci.edu>'
Subject: RE: [EL] Cruz op-ed on proposed constitutional amendment

It seems that section 3 undoes the rest of the proposed amendment at the federal level.  “Press” as used in the First Amendment refers to a means of communication, not a particular industry – in much the same way as it prohibits restriction on speech.

However, the proposed amendment’s limitation on abridging freedom of the press is not extended to the states.

[cid:part3.05040306.03050302 at lls.edu]

John J. White, Jr.
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